Whitted v. Social Security Administration

• Court: District Court, District of Columbia
• Decided: November 14, 2019
• Docket: Civil Action No. 2019-0370
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) JULIETTE YOLANDA WHITTED, ) ) Plaintiff, ) ) v. ) Case No. 19-cv-370 (APM) ) ) SOCIAL SECURITY ADMINISTRATION, ) ) Defendant. ) _________________________________________ )

MEMORANDUM OPINION

Plaintiff Juliette Whitted, proceeding pro se, brings this action challenging the denial of

disability benefits and supplemental security income. See Compl., ECF No. 1 [hereinafter

Compl.]. Regrettably, her action is time-barred and must be dismissed.

A person contesting a final decision of the Commissioner of Social Security must

commence such action “within sixty days after the mailing to him of notice of such decision or

within such further time as the Commissioner of Social Security may allow.” 42 U.S.C. § 405(g).

The agency’s regulations add five days to the 60-day statutory period to account for a person’s

receipt of notice sent by mail. See 20 C.F.R. § 422.210(c); Ducusin v. Comm’r of Soc. Sec., 650

F. Supp. 2d 76, 80 (D.D.C. 2009) (observing that, “[i]n effect, [§ 422.210(c)] alters the statutory

filing period for all litigants—the 60–day period commences not on the date of the notice, but on

the date of the plaintiff’s receipt of the notice”). Thus, to be timely, a claimant has to initiate suit

within 65 days of the notice’s date of mailing.

In this case, Plaintiff filed her action too late. After an administrative law judge denied

Plaintiff’s claim for benefits, the Appeals Council denied Plaintiff’s request for review. See Mot. to Dismiss Pl.’s Compl., ECF No. 6, Decl. of Michael Sampson, ECF No. 6-2, ¶ 3(a). The Appeals

Council mailed its decision on November 13, 2018. Id. Thus, Plaintiff had to file her case within

65 days of that date, or January 17, 2019. But she did not do so, instead filing almost a month later

on February 13, 2019. See Compl.

Although Plaintiff made multiple filings after Defendant moved to dismiss, none responded

substantively to the limitations argument. See ECF Nos. 8–11. The court therefore has no basis

before it on which to consider equitably tolling. See Bowen v. City of New York, 476 U.S. 467,

479 (1986) (stating that the 60-day time limit must be “strictly construed” as “a condition on the

waiver of sovereign immunity”). Plaintiff’s action is therefore time-barred.

For the foregoing reasons, Defendant’s Motion to Dismiss is granted. A separate final

order accompanies this Memorandum Opinion.

Dated: November 14, 2019 Amit P. Mehta United States District Court Judge